Rethinking Theft Crimes in Virginia

University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 2003 Rethinking Theftr C imes in Virginia John G. Douglass University of Richmond, [email protected] Follow this and additional works at: http://scholarship.richmond.edu/law-faculty-publications Part of the State and Local Government Law Commons Recommended Citation John G. Douglass, Rethinking Theft rC imes in Virginia, 38 U. Rich. L. Rev. 13 (2003). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. ESSAY RETHINKING THEFT CRIMES IN VIRGINIA John G. Douglass* "History has its own logic. m I. INTRODUCTION When it comes to the law of theft, our English ancestors did us no favors. They left us the separate crimes of larceny, embezzle ment, and false pretenses. They drew a thin line between larceny and embezzlement, a line that can shift depending upon the mo ment in time a thief decides to steal.2 They distinguished larceny from false pretense based on elusive concepts of "title."3 As if these formal distinctions weren't challenge enough, the common law courts concocted legal fictions like "constructive possession" to turn apparent embezzlements into larcenies and vice versa.4 The result is a nightmare for prosecutors. An indictment may * Professor of Law, University of Richmond School of Law. B.A., 1977, Dartmouth College; J.D., 1980, Harvard Law School. 1. MODEL PENAL CODE§ 223.1 cmt. b (1962). For a more complete recounting of the historical development of theft law, see George P. Fletcher, The Metamorphosis of Larceny, 89 HARV. ~- REV. 469 (1976). 2. See The King v. Pear, 168 Eng. Rep. 208, 209 (1779). 3. See WAYNE R. LAFAVE, CRIMINAL LAW§ 8.7(a), at 828 (3d ed. 2000). 4. "[E]xcept in very early stages of the common law, possession has sometimes been more and sometimes less than what meets the eye." GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW 3-9 (1978). 13 14 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 38:13 charge one form of theft, while proof at trial suggests a different form. A conviction can hang in the balance.5 Over the last fifty years, most American jurisdictions6-not to mention the English themselves7-have simplified their criminal codes by consolidating larceny, embezzlement, and false pre tenses into a single offense called "theft." Virginia is not among them. Instead, Virginia has tried to address the problem with a procedural device. In various forms for most of the last century, the Code of Virginia has provided that proof of embezzlement or false pretenses would suffice to sustain a charge of larceny.8 In theory at least, this procedural solution prevented a thief from escaping conviction simply because a prosecutor miscalculated in framing an indictment.9 But it created a new problem. A defen dant might go through a trial, and sometimes even an appeal, without knowing the elements of his alleged crime. The unfair ness of that process is obvious. Virginia courts have responded by reversing convictions whenever prosecutors sought to convict for a theft crime different than the one charged.10 As a result, the prosecutors' dilemma has never really gone away. This year's Annual Survey comes at a critical time in the evolu tion of Virginia's theft law. Events of the past year highlight the dilemma that Virginia's theft law creates for both prosecutors and defendants. Last November, in Commonwealth v. Bruhn, 11 the Supreme Court of Virginia ruled that the 1994 amendments to the Virginia Code eliminated Virginia's permissive indictment 5. Casebooks and treatises are filled with cases where defendants successfully avoided conviction by arguing that the proof at trial established a theft crime, but not the crime charged. Professor LaFave describes such cases as "a favorite indoor sport played for high stakes in our appellate courts." LAFAVE, supra note 3, § 8.8, at 846. 6. John Wesley Bartram, Pleading for Theft Consolidation in Virginia: Larceny, Em- bezzlement, False Pretenses and§ 19.2-284, 56 WASH. & LEE L. REv. 249, 251 n.23 (1999). 7. Theft Act, 1968, ch. 60, § 1(1) (Eng.). 8. See supra text accompanying notes 2-5. 9. I say "in theory" for two reasons. First, for most of the last century, Virginia's permissive indictment rule has been tempered by an "election" provision allowing defen dants to demand that the Commonwealth elect a particular form of theft offense in writing before trial. See VA. CODE ANN.§ 18.2-111 (Cum. Supp. 1981); see also infra text accompa nying notes 80--82. Second, despite the procedural rule allowing proof of embezzlement to sustain a larceny indictment, Virginia courts have continued to reverse convictions where the proof at trial showed a different crime than the theft alleged in the indictment. See, e.g., Baker v. Commonwealth, 225 Va. 192, 194-95, 300 S.E.2d 788, 789 (1983). 10. See, e.g., Baker, 225 Va. at 194-95, 300 S.E.2d at 789. 11. 264 Va. 597, 570 S.E.2d 866 (2002). 2003) RETHINKING THEFT CRIMES IN VIRGINIA 15 procedure in theft cases.12 Proof of embezzlement, the court ruled, cannot sustain a conviction under an indictment for larceny.13 Months earlier, the en bane Court of Appeals of Virginia reached the same conclusion, 14 while adding a constitutional dimension. It would violate both the Virginia and the United States Constitu tions, the court wrote, to allow conviction for a theft offense dif ferent from the offense alleged in the indictment.15 In February 2003, the General Assembly of Virginia responded by rewriting the permissive indictment procedure into Virginia law.16 The amended Virginia Code provides that proof of embezzlement will sustain a conviction under a larceny indictment.17 But the new provision ignores the constitutional problem highlighted by the court of appeals in Bruhn. It allows trial courts to convict for crimes not charged in an indictment, and appellate courts to sus tain verdicts never rendered by trial courts. The statute, which went into effect on July 1, 2003, has yet to be tested in Virginia's appellate courts. Odds are, it will not survive constitutional scru tiny. In sum, despite the efforts of the General Assembly, Virginia law remains stuck between the "rock" of antiquated theft crimes and the "hard place" of due process. Tinkering with procedural rules merely masks the real problem. My aim in this article is to suggest a different approach.18 It is time to address the substan tive definition of theft crimes in Virginia: to consolidate the crimes of larceny, embezzlement, and false pretenses-as most other American jurisdictions have done19-into a single offense. 12. ld. at 602, 570 S.E.2d at 869. 13. Id. 14. Bruhn v. Commonwealth, 37 Va. App. 537, 546, 559 S.E.2d 880, 885 (Ct. App. 2002). 15. See id. at 541, 559 S.E.2d at 882 (relying on Satcher v. Commonwealth, 244 Va. 220, 231, 421 S.E.2d 821, 828 (1992)). 16. Act of Mar. 19, 2003, ch. 733, 2003 Va. Acts_ (codified as amended at VA. CODE ANN.§ 18.2-111 (Cum. Supp. 2003)). 17. VA. CODE ANN.§ 18.2-111 (Cum. Supp. 2003). 18. I say "different," rather than "new," because consolidation of theft offenses is not a new idea. It is a century-old solution to a three-hundred-year-old problem. For accounts of the movement toward theft consolidation, see generally JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND MATERIALS 1031-33 (4th ed. 2000); LAFAVE, supra note 3, § 8.8, at 846--- 51; LLOYD L. WEINREB, CRIMINAL LAW: CASES, COMMENT, QUESTIONS 413-17 (7th ed. 2003). For a more recent discussion of the need for consolidation in Virginia, see Bartram, supra note 6. 19. See Bartram, supra note 6, at 251 n.23. 16 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 38:13 By dealing with substance rather than procedure, we can elimi nate historical distinctions which serve only to confound prosecu tors and complicate criminal litigation. And we can do so without sacrificing the rights of defendants. II. A LEGACY FROM THE BRITISH: A CONFUSING TANGLE OF THEFT OFFENSES Virginia defines the principal theft crimes of larceny, embez zlement, and false pretenses essentially as they were defined at common law and by the Eighteenth Century British Parliament.20 The narrow, technical distinctions among these crimes have chal lenged courts and confounded prosecutors for centuries. 21 A. Distinguishing Larceny and Embezzlement In Virginia, larceny and embezzlement remain separate of fenses with different elements.22 Larceny requires a wrongful tak ing of property from the victim's possession. 23 Embezzlement oc curs where the defendant lawfully obtains possession, then wrongfully converts the property.24 Because, by definition, one 20. See infra text accompanying notes 26-62. The Virginia Code adopts the common law definition for larceny simply by using the term "larceny" without further explanation in the statute. VA. CODE ANN. §§ 18.2-95 to -96 (Cum. Supp. 2003) (defining grand and petit larceny, respectively); see also Gwaltney v. Commonwealth, 19 Va. App. 468, 474, 452 S.E.2d 687, 691 (Ct. App. 1995). Separate statutes define embezzlement, VA. CODE ANN.§ 18.2-111 (Cum. Supp. 2003), and false pretenses, id. § 18.2-178 (Cum. Supp. 2003). 21. See LAFAVE, supra note 3, § 8.8, at 846. As Justice Moncure stated: The crimes ... are so much alike in many respects and often separated by lines so indistinct, and almost imaginary, that it was difficult for the prosecu tor, in most cases, to determine, a priori, which particular crime to charge in the indictment, and it very often happened that the proof made out a differ ent crime from the one charged ..

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